Allahabad High Court
Mohammad Jaheer vs District Judge, Ayodhya (Faizabad) And ... on 25 September, 2023
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:61930 Court No. - 18 Case :- MATTERS UNDER ARTICLE 227 No. - 4741 of 2023 Petitioner :- Mohammad Jaheer Respondent :- District Judge, Ayodhya (Faizabad) And 9 Others Counsel for Petitioner :- Vijai Kumar Shukla,Gaurav Srivastava Counsel for Respondent :- Ajay Kumar Gupta Hon'ble Saurabh Lavania,J.
1. Vakalatnama filed by Shri Vijay Kumar Tiwari, Advocate on behalf of the respondent no. 3 is taken on record.
2. Heard learned counsels for the parties.
3. In view of order proposed to be passed, notice to private respondent(s) is dispensed with.
4. The main prayer sought in the present petition are as under:
"Issue an order to set aside the order dated 19.07.2023, passed by opposite party no. 1 and order dated 30.09.2022 and 16.02.2023, passed by opposite party no 2, by this Hon'ble Court, in the interest of justice."
5. By means of order dated 30.09.2022, the Trial Court after considering the objection (Paper No. 35C-2) preferred by the petitioner confirmed the Amin's Report (Paper No. 23 C) subject to the evidence to be led by the parties during the trial. The relevant portion of the order dated 30.09.2022 reads as under:
"???????? ?? ?????? ?? ????? ???? ?? ?? ???????? ??? ??? ???????? ??? ??? ???? ??????? ?? ?????? ??????? ???? ???? ?? ???? ???? ????? ???? ??????-???/? ?? ???????? ???/? ???????? ???? ??? ??, ?????? ??????? ???? ???? ?? ??? ??? ?? ???? ??? ????? ?,?,?,?,?,?,?,? ?? ????????? ???? ??? ??? ??????? ???? ???? ?? ???? ???????? ? ???=?? ??? ?? ?????? ?? ????? ???? ??? ??? ???????? ??? ??????? ????? ?????? ?? ??? ?? ????? ?????? ????????? ???? ??? ??? ????????? ???? ??? ????? ??????? ??? ???? ??? ????? ?? ???????? ?????? ???? ??? ??? ???? ?? ?????? ?? ?? ????????? ?? ?? ??, ?? ????????? ??????? ?? ??? ???? ??????? ?? ?????? ?????? ???? ?? ???? ??? ????????? ?????? ??? ?????? ??? ?? ?? ??? ???? ?? ?????? ??? ??? ???? ?????? ???? ???? ??? ??, ????? ?????? ?? ?? ???? ????? ?????? ??? ?? ????? ?? ?? ??? ??? ??????? ?????????? ??? ???? ????? ???? ??????-???/? ?? ???????? ???/? ???? ?? ?????? ?? ?????? ??? ?????? ?? ???? ?????????? ????? ???? ???? ????? ???
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6. Vide impugned order dated 16.02.2023, the Trial Court rejected the application (Paper No. 37C) preferred by the plaintiff/petitioner praying therein that the order dated 30.09.2022 be recalled and fresh commission be ordered. The relevant portion of the order dated 16.02.2023, on reproduction, reads as under:
"???? ??? ???????? ?? ??????? ????? ???????? ?? ?????? ?? ????? ???? ?? ?? ???? ?????? ???????? ????????? ???? ??????-?? ? ???? ??????- ??.??.???? ?? ????? ????? ???? ???? ???????? ????? ????? ?????? ???? ???? ???????? ???? ??? ???????? ?? ?????? ?? ?????? ?? ?? ???? ????????- ??.??.???? ?? ?????? ?? ???? ????? ???? ?? ??? ????? ??????? ???? ?? ??????? ???? ????? ?? ?????? ????????? ?? ??? ????????? ???? ?????? ?? ????? ???????? ?????? ???? ????? ?? ???-??? ?? ???? ?? ?????????? ????? ???? ?? ???? ??? ????? ???? ???? ????? ????????? ?? ???? ????? ???? ??? ??, ?? ?? ?????? ?? ?? ?????? ?????? ???????? ?? ????? ?? ?? ??????? ???????? ???? ?????? ???? ????? ??? ?? ???? ????? ??? ?? ?????? ???? ?????? ???????? ??????? ????????? ???? ??? ??? ??? ???? ???? ?? ????? ???????? ?????? ????? ??????? ???? ????? ???? ????? ??? ???? ?????? ???????? ????????? ???? ?????? ???? ???? ????? ??? "
7. It is appropriate to refer that defendants in suit objected the application for recall of order dated 30.09.2022.
8. In the objection (Paper No. 39C), it has been indicated that just to delay the disposal of application for temporary injunction (Paper No. 6C -2), the present application has been preferred with ill-motive and the order dated 30.09.2022 was passed after hearing counsels for the parties, as such the application for recall (Paper No. 37C)is liable to be rejected.
9. Challenging both these order(s) dated 30.09.2022 and 16.02.2023, the revision was filed by the petitioner i.e. Revision No. 13 of 2022, which was rejected by the revisional Court vide order dated 19.07.2023. The relevant portion of order, on reproduction, reads as under:
"7. In the case in hand, by impugned order dated 16.02.2023, the learned Court below has rejected the application of the revisionist/plaintiff Paper No. 37C on the ground that the Amin Commissioner's report has been confirmed subject to the evidence led by parties, which is not final and is readable under whatever evidence will be produced by the parties before the Court. On these grounds, the learned Court below did not find find any reasons to recall the previous order and accordingly rejected the application of the plaintiff.
8. It is settled provision of law that a Commission cannot be issued for the purposes of collecting evidence on behalf of either of the party. This view has been clearly expressed by the Hon'ble Allahabad High Court in "Javed All Vs. Ahmad Urooz, 2013 (11) ADJ 355" and "Tushar Kumar Shah Vs. District Judge Kanpur Nagar, 2012 (1) ARC 909". Further, in "Smt. Sunder Kaur and another Vs. Smt. Ram Kali and others, 2011 (3) A.L.J. 165" also, the Hon'ble Allahabad High Court relying on his earlier decisions in 'Randhir Singh Sheoran Vs. 6th Addl. District Judge, 1997 (2) JCLR 860', 'Radhey Shyam Vs. A.D.J. Court No.13, Lucknow and others, 2010 (2) ADJ 758' & 'Sonpal Vs. 4th Add. District Judge, Aligarh and others, 1992 (2) ARC 596' has held that the local inspection or commission by the Court is made only in those cases, where on the evidence led by the parties, Court is not able to arrive at a just conclusion, either way or where the Court feels that there is some ambiguity in evidence which can be clarified by making local inspection or Commission. Local inspection or issuance of commission by Court cannot be claimed as marter of right of any of the party.
9. In the present case, perusal of the record reveals that the suit before the Court below was filed by the revisionist/plaintiff for partition and for the relief of perpetual injunction regarding the land in dispute shown in the plaint map. As per the contents of the plaint and written statement, both the parties belonging to a same pedigree. The plaintiff has pleaded in his plaint that the disputed land consists half-half portion of both the parties, but without having any partition, the defendants are trying to raise new constructions over the disputed land by cutting down the trees planted on it. The record also shows that earlier a commission report alongwith map Paper No.23C/1 and 23C/2/ in respect of the disputed land, have been filed in the suit, against which, the revisionist/plaintiff has moved his objection Paper No.35C contending that the report and map submitted by concerned Amin Commissioner, are against the actual position and measurement of disputed land, hence, same is liable to be rejected. The learned Court below on hearing of both the parties, vide order dated 30.09.2022, has disposed off the objection of revisionist/plaintiff and further, has confirmed the Amin Commissioner's report and map Paper No.23C/1 & 23C/2 subject to the evidence led by the parties during the trial. The document i.e. objection Paper No.35C is available on record, a perusal of which, reveals that the facts on which subsequent application Vaper No.37C for recall of order dated 30.09.2022 or for issuance of a second commission has been moved, has already been agitated by the revisionist/plaintiff in his objection Paper No.35C filed earlier against the commissioner report and map Paper No.23C/1 & 23C/2, which has already been disposed off on its merit by the Court below earlier vide order dated 30.09.2022. Therefore, in aforesaid circumstances, once the objection filed by the revisionist/plaintiff against the Amin Commissioner's report and map has been disposed off on its merit, then again on same facts, there appears no justification to recall the previous order or to issue a second commission by allowed the application 37C.
10. In view of the above discussion, as well as, the law propounded by the Hon'ble Court aforementioned Authorities, this Court is of the view that the finding of learned Court below cannot be said,tobe suffered with any infirmity or perversity. There appears no error, illegality or impropriety in impugned order. The impugned order is just and proper well within the jurisdiction of learned Court below, requiring no any interference of this Court. The revision has no force and resultantly, it is liable to be dismissed."
10. Challenging the impugned order(s), submission of learned counsel for the petitioner is to the effect that objection (Paper No. 35C-2) on the Amin's Report (Paper No. 23 C) was based upon facts that in the map/ site plan prepared by the Amin on spot/place in dispute, he correctly indicated the measurements of property, in issue, however, in the map filed in the Court alongwith the report measurements have not been correctly mentioned and in other words the map filed by Amin alongwith the report in the Court is not in consonance of with map/siteplan prepared on spot and this aspect was not taken into consideration by the Trial Court while passing the impugned order dated 30.09.2022 and 16.02.2023 and thereafter, by revisional Court while passing the impugned order dated 19.07.2023 and as such the present petition challenging these orders has been filed. In the case, interference of this Court is required.
11. Shri Vijay Kumar Tiwari, learned counsel for respondent no. 3 stated that the revision challenging the order(s) related to Amin's Report prepared in light of order passed on application under Order 26 Rule 9 CPC itself was not maintainable as the same would be within the expression 'interlocutory order' and accordingly, the present petition is not maintainable. Reliance has been placed on the judgment passed by this Court in the case of Ram Ishwar and Other Vs. Laxmi Narain And Anr. reported in 2007 (66) ALR 195, relevant paragraph of the judgment reads as under:
"14. In Munshi Lal Agarwal v. IXth A.D.J Lucknow (supra) relaying upon various decisions of this Court as well as by the Apex Court, it was observed that order rejecting an application for issuance of Commission does not amount to a case decided and the same being an interlocutory order no revision lies. In para 11 of the said report it was observed as follows:?
"11. An order rejecting earlier application dated 15.9.1990 in this case is nothing but order is interlocutory in its nature. This order by itself does not pass or determine any right of the parties. The Court had only to observe that the report of the Commissioner is nothing but a piece of evidence and that a party cannot be allowed to adduce fresh evidence except in very exceptional circumstance. In the order dated 15.9.1990 the Court further observed that in the instant case, from the perusal of the Lower Court record it is clear that the appointment of Vakil Commissioner was done on 6.1.1990 with the consent of the parties. The learned Lower Court has given full opportunity to the parties to file their objection against the Commissioner report and after hearing these objections the learned Court had passed the order on 16.3.1990 that the Commissioner report would be read in evidence subject to the evidence adduced on behalf of the parties. It further appears from the records that the appellant has filed evidence in this case after the submission of the report of the Vakil Commissioner. In view of the matter the prayer of appellant for Local Inspection of the disputed property, I find, is not liable to be allowed. The appellant's application is rejected. Such orders are and have been taken to be orders of interlocutory nature and not one deciding or determining any of rights of the parties and so do of the amount to be case decided. This being the position that the order does not amount to be an order determining the right of the parties when an application for issue of Commission is rejected it does not amount to be a case decided. It has been so held by a Division Bench of this Court in the case of Gambhir Mal Pandia v. George Authority John . AIR 1934 Allahabad 57.."
15. In Hajara Lal v. Siya Saran (supra), this Court held that an order holding a document to be inadmissible in evidence is a interlocutory order and also it does not amount to final adjudication of dispute inter se within the parties, therefore, revision is not maintainable. However, the revision of the said case under section 25 of the Small Causes Court Act. In para 2 of the said report it was observed as follows:?
"2. Under section 25 of the Act only such decrees or orders are open to challenge which are made in any case decided. It cannot be gainsaid that any order which does not adjudicate upon any right or obligation of the parties in controversy cannot amount to a case decided, which is a condition precedent for exercise of powers under section 25 of the Act. In its decision, rendered in the Central Bank of India Ltd. v. Gokal Chand . AIR 1967 SC 799., the Hon'ble Supreme Court has held that orders regarding of summoning witnesses, discovery, production and inspection of documents, issue of a commission for examination of witness, inspection of premises, fixing a date of hearing and admissibility of a document or a relevancy of a question are interlocutory orders. They are steps towards the final adjudication and for assisting the parties in the prosecution of their cases in the pending proceedings, they regulate the procedure only and do not affect any right or liability of the parties."
16. Thus, what is clearly decipherable from the aforesaid discussion is that before a revision can be entertained in exercise of power under section 115, C.P.C, the order which is said to be assailed under revisional jurisdiction has to be a case decided within the meaning section 115 of C.P.C In view of the fact, by rejection of the application for issuance of a Commission, neither any issue is decided nor any of the rights of the parties are adjudicated upon, therefore, such an order does not amount to a case decided and in the considered opinion of this Court the revision against the same is not maintainable."
12. He further submitted that the plaintiff/petitioner cannot be permitted to collect the evidence by way of Amin's Report or Advocate Commissioner's Report. It is settled law that commission cannot be issued for the purpose of collecting evidence. In the instant case, the petitioner wants to create evidence through Amin's report, which is not permissible under the law. Thus, the order(s) passed by the Trial Court as also the order passed by Revisional Court in exercise of power under Section 115 of CPC are completely just and proper and not liable to be interferred in the present petition.
13. Considered the submissions advanced by learned counsels for the parties and perused the record.
14. It is well settled principle of law by means of an application for issuance of commission under Order 26 Rule 9 CPC, concerned party cannot be permitted to collect/create evidence.
15. In the instant case after considering the objection (Paper No. 35C-2), the trial Court vide order dated 30.09.2022 confirmed the Amin's Report (Paper No. 23 C) subject to evidence of the parties during the trial and the Trial Court rejected the application for recall of order dated 30.09.2022 (Paper No. 37C) vide order dated 16.02.2023 after observing that Amin's report is subject to evidence to be led by parties during trial. Further, the revisional Court after considering the law on the issue specifically observed that for the purpose of collection of evidence or creating evidence, the commission cannot be issued and also observed that in conferring the Amin's Report subject to the evidence to be led by the parties during the trial, the Trial Court has not committed any illegality.
16. It is also not in dispute that the trial Court after considering the pleadings on record have framed the issues and the matter is at the stage of evidence. Further it is also not in dispute that till date, the application seeking temporary injunction preferred by the petitioner under Order 39 Rule 1 CPC has not been disposed of and suit is pending since April, 2022.
17. Taking note of the aforesaid including the observation made in order dated 19.07.2023, this Court is of the view that in the instant case, no interference is required as the petitioner is having full opportunity to prove his case before the Trial Court by adducing appropriate evidence and further, by adducing appropriate evidence and placing reliance on the map/site plan prepared by Amin at spot/place in dispute, the petitioner can impeach/assail the Amin's report
18. Accordingly, the petition is dismissed. No order as to costs.
Order Date :- 25.9.2023 Mohit Singh/-
............................................(Saurabh Lavania, J.)